Law Times

www.lawtimesnews.com Law TiMes / March 3, 2008 Page 15 FOCUS E ach year brings a collec- tion of weird and wacky stories — and the labour and employment law sector is no exception. Microsoft, for example, may be setting itself and customers up for a flurry of lawsuits, though that's obviously not its intent in filing for a patent on a system that monitors an employee's heart rate, facial expressions, and stress, along with keystrokes. Ostensibly the system's intent is most likely to see if the em- ployee is overworked and over- stressed and in need of support from a manager or some respite from e-mail and phone calls. However, subscribers to Or- wellian theories are already argu- ing this could turn more sinister. Of course, there's not much point in speculating on future lawsuits; there are more than enough before the courts now. Some have happy endings, some are still continuing, and some just make you smile or shake your head. Take Eric Powell, who was fired by letter from his day job two days after he was sworn in as a Mississippi Senator in Janu- ary. He'd been there 12 years and had won the company's support when he first sought election. Powell, the first black candi- date to be elected in the white district of Corinth, was canned from Packaging Corporation of america, in nearby Tennessee. The State House only sits three to four months of the year and isn't a full-time gig. It took about 10 days af- ter the United Steelworkers of america stepped in and took up his cause before the com- pany reinstated him. apparently it was a mix-up over whether he was resigning or simply applying for a leave of ab- sence, says www.laborradio.org. Not that Canada is without its own stories. Frustrated their concerns over their boss' work habits weren't being taken se- riously at the Public Service Commission, Lynn Nessrallah resorted to snapping a picture of him snoozing at his desk in 2005, as part of an evidence- gathering move. She e-mailed the picture to her colleagues with some sarcastic remarks. It wasn't the first time the boss, a lawyer who earned about $90,000 annually, had been seen asleep at his desk. Even his boss had spotted his snoozing and through 2005 had worked to el- evate his game, assigning a coach to work with him. But that year, one of the HR managers became aware of the picture and suspended Ness- rallah, a 26-year veteran of the civil service, for three days. It was later reduced to a one-day suspension. Despite struggling with mul- tiple sclerosis, she grieved the suspension and spent $10,000 on lawyers' fees but lost at the Public Service Labour Relations Board in January. The board accepted there was a problem with the manager but ruled Nessrallah stepped over the line and meant to embarrass the boss by e-mailing the picture to four colleagues. The manager, whose name was not released, has since been promoted. Or consider this: Colorado employees who vote to form a union can sit down after a suc- cessful vote to negotiate wag- es, seniority, and benefits — anything, in fact, except one thing: union security clause. This pretty well undermines the point of having a union. Lawmakers are in the process of undoing the bizarre statute. Of course, the Europeans are no slouches when it comes to innovative practice. Strangemag. com reported last year that Jens Lorek, a 41-year-old Dresden lawyer, was still struggling to de- velop clients who think they've been abducted by aliens in state compensation claims.. The Ger- man lawyer, who specializes in labour and social law, says the big issue remains clients who make fools of themselves in court. Not to mention counsel. and in China there are new rules protecting nurses against violent attacks from angry pa- tients or their families. apparently there were 10,000 such attacks in 2006, Reuters re- ports. The end of comprehensive health care and mismanagement in medical centres have triggered complaints about ripoffs, quack treatments, and corruption, with nurses often bearing the brunt of any frustration among patients. Back in the U.S., the case of Stacy Snyder, 25, reminds us all that cyberspace is still a public place. Snyder was a stu- dent at Millersville University, in Millersville, Pa., and was fired from a teaching gig at a local high school over a pic- ture of herself on her MySpace page. She was working towards her teaching certificate. The picture wasn't risqué. It was a headshot taken at a cos- tume party of her wearing a pirate's hat with a large plastic cup. The caption was perhaps ill- advised: "Drunken Pirate." But there was no evidence she was in- deed intoxicated. The university backed the school's complaint in calling the picture and her be- haviour "unprofessional." The U.S. Federal Court in Philadelphia says her right of free speech has been violated and has ordered a trial. Meanwhile, four women were fired for indulging in a little too much free speech in a small New Hampshire town. They were terminated for cause for gossiping about the rela- tionship between a colleague and the town's administrator. By last fall, having spent $30,000 of a $35,000 budget on legal fees, the town and its fired ex-employees were headed for arbitration. Two of the four have filed federal lawsuits. and, lest we forget that be- ing an employer isn't all mom and apple pie, the Mothers work Inc. chain in the U.S. has settled with the U.S. Equal Em- ployment Opportunity Com- mission and paid $375,000 to settle a lawsuit after a pregnant employee and pregnant pro- spective employees alleged that- they were fired or, in the latter case, not hired because of their condition. at least they didn't have the ignominy of being fired be- cause they were too fat, as did Michael Frank, a 6-foot 4-inch, 325-pound New York state schoolteacher. Finally, even the biggest, cool- est companies can make the dumbest mistakes. an apple Computer Inc. sales rep had been on the job about a year when he was urged by his manager to per- form at the company's annual talent show in 2005. He performed a "Def Jam- style" (a fresh-style, spoken, rhythmic poetry reading with comic overtones) but his five- minute ode to "Canadian Fe- dEx girl" and the missed op- portunity to relate with "nice, polite Canadians" raised the ire of an apple vice president who thought the punchline — a confession he had kept his "rude, obnoxious american customers" on hold during the storytelling — crossed the line. as a parting gift, he posted his performance and snippets of the contrasting, painfully em- barrassing performances of his co-workers from the show on YouTube. He called the video: How I got Fired from apple. Flash forward three years and Big Poppa E is perform- ing across the country in com- edy shows, has appeared several times on HBO's Def Jam, and says on his blog that to this day he still get calls from the media about his apple show. LT Labour pains: weird, wacky, and off-the-wall stories from employment law By iaN HaRVey For Law Times Visit our Web site and Save 20% www.canadalawbook.ca Quitting for Good Reason: The Law of Constructive Dismissal in Canada The Honourable Justice Randall Scott Echlin, Superior Court of Justice (Ontario) and Jennifer Fantini For Better or For Worse: A Practical Guide to Canadian Employment Law, Second Edition The Honourable Justice Randall Scott Echlin, Superior Court of Justice (Ontario) and Christine M. Thomlinson Canadian Compensation Handbook David E. Tyson The Corporate Counsel Guide to Employment Law, Second Edition Peter Wilson and Allison Taylor March Specials LT 1-4x3•Web Discount 2/27/08 9:49 AM Page 1 B a r r i s t e r s & S o l i c i t o r s Wrongful Dismissal Labour Relations Employment Law Human Rights Post Employment Competition Civil Litigation Appellate Advocacy Workers' Compensation Employment Standards Administrative Law 82 Scollard Street, Toronto, Canada, M5R 1G2 Phone: (416) 921-7997 Fax: (416) 921-3662 web: www.staceyball.com www.kenalexander.ca B all & A lexander Excellence in Employment & Labour Law • Counsel in Leading Cases • • Authors of Leading Book •

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